INDUSTRIAL RELATIONS — Employment Appeal Tribunal — Procedure — Employment tribunal issuing certificate of correction substantially changing originally promulgated decision — Employment Appeal Tribunal reinstating original decision and remitting to tribunal without direction — Whether certificate of correction exceeding slip rule embargo — Whether Employment Appeal Tribunal's decision error of law — The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, sch 1, para 37(1)

Bone v Newham London Borough Council [2008] EWCA Civ 435; [2008] WLR (D) 134

CA: Buxton, Smith and Wall LJJ: 30 April 2008

Where an employment tribunal had held that a complaint of direct sex discrimination and victimisation or constructive dismissal had not been proved, it was not open to the tribunal subsequently to amend its decision to find that her dismissal had been an act of direct sex discrimination and victimisation. Where the Employment Appeal Tribunal concluded that the tribunal had erred in law in so amending its decision, it was inappropriate for the EAT simply to allow the appeal and leave the original and unamended decision to stand.

The Court of Appeal so held when allowing the appeal of the employee, Caroline Elizabeth Bone, from the decision of the Employment Appeal Tribunal (Wilkie J, Dr B V Fitzgerald and D Welch) UKEAT/0243/07/CEA whereby it set aside a certificate of correction issued by the Employment Tribunal pursuant to para 37(1) of Sch 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The correction stated that the employee’s dismissal by Newham London Borough Council had been an act of direct sex discrimination and victimisation. That replaced its original decision which did not conclude that the employee’s dismissal had been an act of direct sex discrimination and victimisation. The Employment Appeal Tribunal varied the order of the tribunal by reinstating the original order.

WALL LJ said that the function of the Court of Appeal, when hearing an appeal from the EAT, was to decide whether or not the employment tribunal had made an error of law which the EAT had failed to correct. There was no doubt that the employment tribunal’s use of para 37 of Sch 1 to the Regulations to amend its previous judgment was impermissible and an error of law. The critical question was whether or not the EAT had been right simply to allow Newham’s appeal, thereby leaving the employment tribunal’s original and unamended judgment in place. Whatever the proper confines of the “slip rule” were, the certificate of correction was outside them. Therefore, the EAT was correct in concluding that the tribunal had committed an error of law in attempting to use para 37 to insert into its judgment a specific finding that the appellant's constructive dismissal was an act of direct sex discrimination and victimisation by Newham. The EAT had itself fallen into error in allowing the original decision to stand. Whilst it was right to reject the argument that the tribunal’s judgment could be corrected under the slip rule, it by no means followed that the EAT was “constrained” to conclude that the original decision had to stand. The matter should be remitted to the original tribunal for further consideration.

SMITH and BUXTON LJJ agreed.

Appearances: John Horan (Citizens Advice Bureau) for the claimant; Shepherd QC ( London Borough of Newham) for the borough.

Reported by: Ken Mydeen, barrister